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Commentary: Lawyer considers corporate involvement in international crimes; argues for amending the Rome Statute to include corporate liability

"Nestlé & Cargill v. Doe Series: Remedying the Corporate Accountability Gap at the ICC", 11 January, 2021

[Editor’s Note: This article is part of a Just Security series on the consolidated cases of Nestlé USA, Inc. v. Doe I and Cargill Inc. v. Doe I, which was argued before the Supreme Court on Dec. 1. The introduction to the series and all other articles can be found here.]

“With great power comes great responsibility,” right? Maybe not. When it comes to corporations and their involvement in grave human rights violations amounting to international crimes, it seems that corporations are almost untouchable.

... Corporate involvement in international crimes is not a novelty; it has only become more compelling due to the growing omnipresence and power of transnational corporations within society. Corporate involvement can range from supplying weapons (e.g. Chiquita Brands International Inc.) to providing services that have exacerbated abuse (e.g. Lafarge), to the illegal exploitation of natural resources (e.g. DRC v. Uganda). Corporations often play a key role in fueling and facilitating conflicts, due to their involvement at every stage of the production and distribution process. In general, there are roughly three forms of corporate involvement in international crimes: direct involvement as a primary perpetrator or through acts which constitute aiding or abetting; indirect involvement by knowingly benefitting from crimes committed by others; or involvement of a more passive nature when their mere presence and participation in a country’s economy contributes to the commission of abuses by State or non-State actors in that country.

... As the U.S. Supreme Court considers whether and how to hold U.S. corporations accountable for human rights violations, including aiding and abetting crimes abroad, it is important to map the global legal landscape and outline where corporations face legal liability – and where there are accountability gaps. This article will review one such gap in current international criminal law, which has no explicit provisions for corporate liability. I will discuss the arguments for such liability, the history and reasoning behind the accountability gap, and some recent hints in international law that the time for corporate criminal liability has come. I will then explore the prospects of amending the Rome Statute of the International Criminal Court (ICC) to include corporate liability.

... The discussion about corporate criminal responsibility was re-ignited at the 1998 U.N. Diplomatic Conference in Rome, which established the ICC. The French delegation put forward a proposal that would have granted the ICC jurisdiction not only over natural persons, but also legal entities. However, no consensus emerged on the topic as there was a deep divergence of views between different States. In particular, many legal orders had not yet implemented corporate responsibility in their domestic systems at the time, leading to concerns that the complementarity principle would not function if corporations were to be included within the jurisdiction of the ICC. In the end, there was not enough time to fully consider the proposal; it was scrapped to avoid impeding the ratification of the Rome Statute in general. To date, ICC jurisdiction is limited to individuals as defined in Article 25 of the Rome Statute.

... However, several recent developments suggest an evolution in the prospects for corporate criminal responsibility.

... Of course, the inclusion of corporations as legal entities within the personal jurisdiction of the ICC would remedy the accountability gap that these recent, partial measures attempt to patch. The previous attempts to include corporations under ICC jurisdiction, including the French proposal described above, have met resistance; however, the legal landscape has changed in such a way that amending the Rome Statute to include legal entities in addition to natural persons does not seem far-fetched anymore.

... The time has come. “Business as usual” is no longer acceptable. The current accountability gap can –  and hopefully will – be remedied by including corporations within the jurisdiction of the ICC.